Magrath v. Magrath , 103 Mass. 577 ( 1870 )

Colt, J.

It was held in Southwick v. Southwick, 97 Mass. 327, that the refusal of matrimonial intercourse, although unjustified by considerations of health or physical disability, inasmuch as it was a breach or violation of a single conjugal or marital duty only, would not support a libel for divorce on the ground of desertion, when it had continued for five years consecutively.

The case at bar goes much further. Here there has been for the time required by the statute, an abnegation on the part of the husband of all the chief duties and obligations which result from the marriage contract and distinguish it from others. There is no more important right of the wife, than that which secures to her in the marriage relation the companionship of her husband and the protection of his home. His wilful denial of this right, with the intentional and permanent abandonment of all matrimonial intercourse, against her consent, is desertion within the meaning of our statute. And such conduct is not relieved by the fact that he has from time to time contributed to her support and the support of her children. A man may do as much as this, from motives of charity, or deference to the opinions of others, or in order to discharge, in part, a legal responsibility for the means of living furnished her; although he may all the time have a fixed intention permanently to abandon all personal relations with her. In the case at bar, indeed, the wife, in her destitution, first applied to the overseers of the poor, who then called upon the husband, as they had the right to do, for the aid which he was bound to furnish.

When the intention to desert is in controversy, and the evidence is meagre or conflicting, there are many cases, no doubt, where the fact that the husband continues supplies to his wife will be strongly significant, if not decisive in his favor. -That is not the question here. And we are of opinion that, in a case ike the one at bar, the right of the wife to a divorce, and to suitabb alimony out of his estate, is not to be defeated by his contributions towards her support, made after his abandonment of her.

In the recent English case of Yeatman v. Yeatman, Law Rep. 1 P. & D. 491, where it was contended by the husband that the fact that he had continued to support his wife prevented his conduct from amounting to desertion within the meaning of the divorce act, it was said by the judge ordinary, that, although the permanent denial of the right of the wife may be aggravated by leaving her destitute, or mitigated by a liberal provision for her support, yet, if cohabitation is put an end to, against the consent of the. wife, with no intention of renewing it, the matrimonial offence of desertion is complete.

Divorce from the bond of matrimony decreed.